Month: July 2019
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Assuming that everything I said in my last article was true, and it is, the final say-so on virtually all constitutional issues (there are some exceptions) including cases involving the separation of powers, resides with the US Supreme Court (see last bullet point). The inherent power of judicial review under Article III, a judicial power the basis of which does not appear in the black letters of the law (now that we know what that means), but through a “hidden” power the Supremes gave themselves through their own interpretation of the Constitution. This power allows the Supremes to review all cases and controversies that arise under the Constitution and adjudge them constitutional or otherwise. As a practical matter, we can safely conclude that in this final analysis, the Constitution says whatever the Supremes says it does. Yes, you read that right. This includes cases involving legally cognizable skirmishes between the President and Congress.

You might be thinking how did this happen? Wouldn’t such a sweeping, influential and flat-out dangerous power have to be in plain, unambiguous writing within the four corners of the document to be “kosher?” What would the Founders have said? The case establishing the power of judicial review is Marbury v. Madison (1804). It involved two of the best known and influential of the Founding Fathers, John Adams and Thomas Jefferson.

When it comes to separation of powers the Legislative and Executive Branches have been fighting since the day the Constitution was ratified. Marbury is still a prime example of classic, churlish infighting between the President and Congress. After a nasty (even by modern standards) campaign involving countless incidents of mudslinging, character assassination and a hefty amount of balderdash, the incumbent Federalist candidate John Adams was defeated by the somewhat more radical Republican-Democratic Party candidate Thomas Jefferson. In an act of naked partisanship, on the evening before he left office, John tried to appoint 100 or so of his Federalist allies to life-time commissions in the Federal government. For the most part he succeeded, however, out of what was probably a haste makes waste moment he left several appointment letters behind in ye presidential desk drawer.

Thomas found the letters and summarily refused to deliver them, thereby denying the intended recipient their cozy, crony commission. One potential public servant denied his post as Justice of the Peace was John Marbury. He sued Jefferson’s Secretary of State and another Hall of Framer, James Madison, to deliver his appointment letter post-haste. Madison told Marbury to poundeth sand and the fight was on. Who was right? The still controlled by Federalists Congress wanted the appointment. The President did not. The Constitution has no express provision for this kind of conflict between branches. In a bind, they asked the Supremes to decide. In what still is the biggest constitutional power grab, John Marshall, the Chief Justice Supreme said, “let me think about it.” And he did. Several months later, he published his decision. In the first part of the opinion, Marshall has to decide whether the Supremes have the constitutional power to interpret the Constitution. Not surprisingly, the politically savvy Marshall decides yes. The Supremes do have the power to hear, interpret and render a decision in the case.

In the much shorter second part of the decision, we find Lady Liberty is not so lucky for Marbury. Marshall finds the Supremes do not possess the power to compel the Executive branch to deliver the letter, the sooner the better, or otherwise.

What did the Founding Fathers have to say? Nothing. They let the decision stand, judicial review and all. Greatest usurpation of power in American history, right under their collective white wigs and powdered, perfumed noses.

In conclusion to last week’s earlier conclusion, does Trump have an Article II power to do whatever he wants? Now I’m not saying Marbury is a blanket ruling under which the Supremes can never order a President to do, or not do something. Each case has unique facts including some of far greater significance that whether Marbury became a Justice of the Peace. With Herr Trump, it doesn’t seem likely Justice Roberts would approve of such a far reaching declaration of presidential power. Not likely to be sure, but now you know you never know until the fat supreme sings. It’s like that. Yes, it is.

[Ed.s Note: You can see the many previous Rants of Dean Drucker at:https://losangelesfreepress.com/testimonials-to-the-la-free-press/ as well as here under the Today’s Rant Tab. Interesting reading, we think. And, too, we think that in these upcoming months, he will be a vital resource, a go-to Expert on the on-going attempts of the White House to turn America’s most cherished values into sludge.
>>Additional ‘Rants’ are posted every Tuesday, and if we are all lucky, he’ll also have one up on Thursday. Best to check regularly. Or, too, so you will receive them automatically you are welcome to take advantage of today’s Subscription Special at: https://losangelesfreepress.com/subscribe-to-the-la-free-press/

I’ll add this, too, as I personally hope you make the most of our Historic Archives, as well ~ they begin in 1964 and are, literally, among the very finest records of that pivotal era. And, as a Subscriber, you may make Requests for our articles on those seminal events – FOR FREE 🙂
>>Not sure where to begin? See the most remarkable – and eerily coincidental??? – articles at our ’50-Year Throwback Thursday’ Tab… up at the top of the page.
>>Now, Phil, now that we know that the Supremes have as much power as they do, what can ‘we’ do to ensure that America stays its course of high-ideals? Hope to see you all, automatically, on this Thursday… please go on back up and check out that link to the Subscription Special!]

Yes, I do see the ‘screamer’ headline “Cops Prepare For New Watts Riot”. But that’s only the bouncing ball that’s caught your eye. It’s the lyrics that count… and they’re written down under that second and smaller headline, the one that tops the article by Art Kunkin. It’s not just some song, it’s a major clanger – all about the opening bell in a fight against the insidious growth of fascism.
For, just like now, it suddenly became apparent that fascism – here in America – wasn’t a passing fancy, an isolated incident, nor a movement without a leader. In fact, it was everywhere you looked – the result of small seeds planted, nurtured, and now blooming in the very movements that should, instead, lead us to a greater and more beneficial society.
To be certain that you did not miss their corruption, his loud and urgent announcement leads to the following 2 articles, both of which are examples of where fascism has gained a foothold. Most importantly, though, he is saying that while the identity of The Leadership of this all-important and truly revolutionary counter-movement may be a surprise to you – DO NOT DOUBT IT.

Instead, use his references – or those as easily obtainable in this new day and age – to understand from whence that leadership developed – and recognize that, historically, most revolutionaries seem to appear from nowhere. But in retrospect, as is here also the case, they were – were – there, perhaps as bothersome or seemingly un-necessarily concerned individuals. And, too, the skills they had demonstrated, those very same skills that had earned our ire, we newly see as necessary – perhaps more perfect than any others – to rectify the very situation in which we suddenly find ourselves.

How true is this, that revolutionaries rise in our midst, seemingly known but then suddenly revealed? On this Throwback Thursday to our publication of the LA FP exactly 50 years ago, the veracity of that reality was confirmed with the revelation (via the next articles from that Issue) that it might very well be that “The Black Panthers will be our Saviors”. What a surprise that was to a bunch of white folks! 50 long years ago. Were they ready for it? Could they, would they, follow the leaders that voiced the truth that had to be heard?

As you consider those questions in your read of our past pages, I’ll add in to the mix our usual reminder that it is absolutely remarkable that those times and these times often seem to be on the very same track… and ask, too, if you’ve yet noticed 4 ladies of color?
(Finally, a Spoiler Alert: Way down at the bottom, as the mainstream news is distracting you once again (in yet another remarkable coincidence) with it’s outta this world feature story, we’ve added in a 5th re-printed page; our original Readers’ take on that moon landing now again in the news. Then, too, perhaps the best-ever job application 🙂

Read these – Page 1 above, Pages 2, 3, 4 below on the presence of Fascism in 1969, and how it might -Then and Now – be brought to a halt. Page 6 is on that now-fabled moon landing, but back then it was a de-rided effort (the page includes that here’s-how-to-get-a job app). And what of the missing Page 5? It’s a full-page proposal for Timothy Leary’s Third Party. If you would like to see it – OR ANY OTHER Page (fer Free!) – go to the Home Page on this site, and pop-in an ARCHIVE Request for that Page!

Hmmm… clearly an afterthought, but one that should be good for us both…
You are very welcome to take advantage of today’s Subscription Special.
Personally, I hope that you make the most of our Historic Archives ~ they begin in 1964 and are, literally, among the very finest records of that pivotal era. And, as a Subscriber, you may make Requests for our articles on those seminal events – FOR FREE 🙂
Here’s a Link to that Special:
at: https://losangelesfreepress.com/subscribe-to-the-la-free-press/

I’m going to let you in one a little secret. Constitutional analysis is not as difficult as it may seem. Yes, it is not for the weak of mind or spirit, and it does require a working knowledge of history, law, government and civics. The trick is being able to put the pieces back together again. They are all there. The question is not what, but where.

Take for example the recent statement our President gave regarding the Constitution.

“Article II gives me the right to do whatever I want.”

Is it possible that is a correct statement of Constitutional Law? It could be. But it’s not. Why? Let’s break it down and find out. I offer the following step-by-step outline as a guide. Use topically and as often as necessary.

Step 1: We need to look for what is there. We call this “Black Letter Law” analysis – do the actual words themselves appear in the Constitution and are they open to any alternative meaning except those conveyed by the words common meaning and perhaps augmented by a pinch of context? Now this may sound a bit cheeky, but is there within the four corners of the Constitution an “Article II gives me the right to do whatever I want clause? In the plain, black letters of the law? Step II: The answer is no. This does not mean the statement is patently indefensible, but it’s not a good sign.

Step III: Article II of the Constitution deals with the Executive Branch. The branch tasked with first and foremost the black letter mandate (Article II Section 3);

“He” is the President. So, according to Article II, Step IV: what exactly, within the “four corners” does the President do? For purposes of clarity and legislative intent, let’s split those parts of Article II devoted to the president into two parts, domestic and foreign. Next, we can further investigate Article II, Sections 2 & 3, and divide the identified not so much powers, but more accurately described as duties and obligations into two columns:

*Domestic ………………………………………………………………………….Foreign
*Commander in Chief ……………………………………………………..Make Treaties
*Grant Reprieves and Pardons……………………………………….Appoint Ambassadors
*Appoint Superior and Inferior Officers……………………….Receive Ambassadors
*Recess Appointments…………………………………………….and other public ministers
*Inform Congress of the State of the Union
*Convene Congress in Times of Emergency

Step V: Unlike the Congressional powers enumerated in Article I, Article II was intentionally written in broad strokes to give the President flexibility in dealing with crises and emergency situations where quick response times can be the difference between life and death. Therefore, most of the Presidential powers are not evident from a cursory reading of the Constitution, yet the president must follow the Constitution and takes an oath to do so (Article II Section 1).

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Step VI: Say you are Lincoln and you are faced with the southern states wishing to succeed from the Union. The Constitution itself is silent on the concept. The Constitution does however task the President with perfecting a more perfect Union, ensuring domestic tranquility and promoting the general welfare. How could any of these Constitutional mandates s/he is sworn to uphold be accomplished by allowing the south to succeed? None, thought Lincoln and so he went over to Congress, asked them to declare war making him commander in chief. And so, we went to war. That’s how the Constitution works, Charlie Brown.

Oh, as for that ridiculous 14-year-old sexually active potty mouthed brat on Jerry Springer assertion Trump spewed out about presidential powers, is it true? Of course not.

The Greatest of all Time (GOAT). The first time I heard the term was referencing Michael Jordan as the GOAT of basketball. If this is so, and it probably is, MJ was known for his power, grace, adaptability on the court and an uncanny ability to sink the big one at the buzzer. A pressure player if there ever was one. The higher the odds the better he performed. He lived for the pressure moment. He always took the shot.

Another GOAT, this one of ice hockey would have to be Wayne Gretzky. To NHL fans he’s known as the Great One. The highest scorer of all time with an amazing knack to be in the right place at the right time, usually in front of the net right about the time he put the puck into the back of it. The Great One is credited with one of my favorite quotes. “You miss 100% of the shots you don’t take.” Needless to say, he took the shot.

When it comes to the Constitutional sports (if there is such a thing) the First Amendment is my nominee for GOAT. This champion of rights and justice is a multi-faceted gem of pure grace and genius. The literal summation of hundreds of years of humanity’s struggle to read, think, write and speak for oneself without prior restraint from Church or State.

When Johannes Gutenberg printed his first Bible he opened the door to meaningful religious reform and institutionalized freedom of speech and press. Soon, the world became functionally literate and started sharing ideas, including political dissertation in a manner never imagined in content or scope by your average Medieval dweller who, in all fairness, was justifiably more occupied with trying to survive the Black Plague than with becoming an independent and enlightened thinker.

Today, the Black Plague is behind us. But another epidemic, this time spread by racists and racism, has raised its ugly flea-head and, unfortunately, managed to infect the national discourse of politics, and policy.

At one of my recent speaking engagements I was asked why our elected officials seem in no hurry to eradicate this incubating, festering, and spreading quickly to the weak minded among us bacterium Yersinia pestis president before his vile pestilence spreads any further into our national psyche. The helplessness and frustration in the room was palpable. If I could sum it up in a sentence it would be “What good is free speech if no one is listening?”.

The sadness filled me for there is no singular answer. If you are reading this you are the Resistance and this movement like all good treatments takes time to heal and, eventually, cure. To resist is not so much an event as it is a process. A reformation involving mind and heart over matter, the triumph of good over evil. The antidote is free speech, more speech, still more speech and, importantly, your own speech. For the repetition of truth, no matter how softly spoken will always defeat fake news, falsehoods, misdirection, half-truths and outright lies and deception generated in most part by fear, partisan politics and self-interest, no matter how loudly or bombastic in its deliverance it may be.

The internet in general and social media but the latest ganglia and nervous system of the body politic. Call your Congressperson, write a letter to the editor of your local newspaper. Say what you will, wherever you are, as often and as many times as you can. If you don’t, you’ll never connect to the people out there, people like you, and me. The bottom line is take the shot as you already know what will happen if you don’t.

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